A judge ruled Thursday to allow key DNA evidence to be used during the course of a murder trial after the defendant's attorney filed a motion to suppress that evidence.

Donald Eugene Borders, charged with the rape and murder of 79-year-old Margaret Tessneer, is now scheduled to go to trial in January.

In September 2003, Tessneer was found by family members in her Shelby home, dead, with the phone lines of her house cut, according to police.

David Teddy, Borders' lawyer, filed a motion to suppress evidence, claiming the methods law enforcement officers used to obtain a DNA sample from Borders was a violation of his rights.

DNA evidence obtained from cigarette

According to court testimony, in May of 2009, a Gaston County Police officer served a 2-year-old outstanding warrant on an unrelated charge and also collected a cigarette butt from Borders in an effort to obtain a DNA sample.

Borders had three times refused to voluntarily give a DNA sample, according to court testimony.

Officer James Brienza testified Tuesday that when he went to the Cherryville home where Borders was staying, he purposefully offered the 53-year-old man a cigarette before he transported him to the jail.

Brienza said after Borders took several drags on the cigarette while standing in the driveway in handcuffs, Brienza offered to dispose of the cigarette butt and Borders agreed.

State Bureau of Investigation Agent John Kaiser testified Tuesday that a DNA profile developed from the cigarette was a match for DNA collected from the home of Margaret Tessneer.

Teddy said officers should have cleared the idea with lawyers or a judicial official and they had violated Borders's fourth amendment right.

Assistant District Attorney Sally Kirby-Turner said under North Carolina law, the cigarette was effectively abandoned.

She said Borders did not have to allow the officer to dispose of the cigarette, but once he did, by law, it constitutes abandonment.

Once a piece of property is abandoned, Kirby-Turner argued that the conveyor relinquishes all expectations of privacy.

Judge: Defendant gave up privacy expectation

Superior Court Judge Richard D. Boner ruled that once Borders gave up the cigarette to the officer, he also gave up his expectation of privacy.

He cited case law to back up his decision.

"We are relieved and happy," Kirby-Turner said.

She said she hadn't been sure what to expect from Thursday's ruling.

"Judge Boner really plays his cards close to the vest," Kirby-Turner said. "He doesnt like to reveal a lot."

Teddy said since the case is still pending, he did not have a comment.

Reach reporter Rebecca Clark at 704-669-3344 or rclark@shelbystar.com or follow on Twitter @TheStarRebecca.